J-A29044-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CHERYL A. CALIENTE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 140 MDA 2020

Appeal from the Judgment of Sentence Entered December 3, 2019

In the Court of Common Pleas of Bradford County Criminal Division at 

No: CP-08-CR-0000378-2019

BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED FEBRUARY 4, 2022

Appellant, Cheryl A. Caliente, appeals from the aggregate judgment of 

sentence of 39 months’ to 92 months’ incarceration, which was imposed after 

her jury trial conviction for two counts of retail theft, graded as a third-degree 

felony, and two counts of theft by receiving stolen property (theft-RSP).1 We 

vacate the judgment of sentence and remand for resentencing. 

 The facts underlying this appeal are as follows.

Walmart Asset Protection employee, Ms. [Tonya] Steele, 

testified that on February 20, 20[19] she observed Appellant 

acting suspicious “doing the shoplifter lean” where her arms 

were down in [the] top basket of [her] cart “playing” with 

merchandise; Ms. Steele continued to observe Appellant 

until she checked out at the self-check-out (where an 

individual scans price tags themselves) and left the store; 

she then retrieved Appellant’s receipt and reviewed the 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 3929(a)(2) and 3925(a), respectively. 
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overhead video of Appellant checking out to determine if 

items scanned matched; Ms. Steele determined that 

Appellant used a $1.00 merchandise tag hidden in her hand 

to scan while passing more expensive items over the 

register to a bag; at one point in time the tag fell out of 

Appellant’s hand and Appellant picked it up; Appellant also 

held a pad with a price tag of $0.94 on the bottom of 3 

$25.00 candles; and did not scan the actual items’ price 

tags; on February 21, while investigating the February 20, 

2019 incident, she noticed on the live feed from self-checkout, the Appellant again checking out; Appellant “skipped 

scanned” meaning she just did not scan something and put 

it in her bag; and again used different tags for other items. 

Trial Court Opinion (TCO), at 1-2 (citations to notes of testimony omitted).

Appellant was arrested and charged with two counts of retail theft and 

two counts of theft-RSP. Information, 6/11/19. Appellant proceeded to a jury 

trial on September 19, 2019. Appellant absconded from the courtroom after 

the evidence was presented to the jury but before the jury returned with a 

verdict. The jury found Appellant guilty in absentia of two counts of retail 

theft and two counts of theft-RSP. 

On December 3, 2019, the Appellant appeared for sentencing and the 

trial court sentenced Appellant to consecutive sentences of 14 months’ to 28 

months’ imprisonment on each count of retail theft. On the first count of theftRSP, a misdemeanor of the second degree, the trial court sentenced Appellant 

to 6 months’ to 24 months’ imprisonment, consecutive to the prior charge. 

On the second count of theft-RSP, a misdemeanor of the third degree, the trial 

court sentenced Appellant to 5 months’ to 12 months’ imprisonment, to run 

consecutive to the prior charge. Appellant received an aggregate sentence of 

39 months’ to 92 months’ incarceration. 
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Appellant filed a timely post-sentence motion on December 10, 2019, 

challenging the weight of the evidence, the sufficiency of the evidence 

presented to prove that Appellant altered price tags, and discretionary aspects 

of her sentence. Post-Sentence Motion, 12/10/19. The trial court denied 

Appellant’s post-sentence motion on December 17, 2019. On January 15, 

2020, Appellant filed a timely notice of appeal.

On April 15, 2021, this Court filed a Judgment Order finding appellate 

counsel per se ineffective for failure to file a Pa.R.A.P. 1925(b) statement 

when one was ordered by the trial court. Order, 4/15/21. The appeal was 

remanded to the trial court to appoint new counsel and to permit newly 

appointed counsel time to file a Pa.R.A.P. 1925(b) statement. Id. Both the 

trial court and counsel have complied with Pa.R.A.P. 1925. The trial court filed 

a supplemental 1925(a) opinion on July 7, 2021.2

 Appellant presents the following issues for our review:

1. Was the evidence presented at trial insufficient to sustain 

the convictions for Retail Theft? 

2. Was Appellant improperly convicted of both Retail Theft 

under 18 Pa.C.S. Section 3929(a)(2) and Receiving 

Stolen Property under 18 Pa.C.S. Section 3925 for the 

same transactions? 

3. Was the imposition of consecutive sentences in the 

aggravated range, excessive for conduct that occurred 

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2 On August 3, 2021, this Court entered an Order setting a new briefing 

schedule for the parties in light of the appointment of new counsel and the 

filing of the Rule 1925(b) statement. Both parties complied and submitted 

new briefs to this Court as of December 19, 2021. 
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within a short period of time and involved a small amount 

of financial loss? 

4. Was the imposition of non-mandatory fines improper 

without a finding by the Court that the Appellant had the 

ability to pay? 

Appellant’s Brief, at 4 (reordered for ease of discussion).

Appellant first argues the evidence was insufficient to sustain the 

convictions for retail theft. Appellant’s Brief, at 4. “Whether sufficient 

evidence exists to support the verdict is a question of law; our standard of 

review is de novo and our scope of review is plenary.” Commonwealth v. 

Hutchison, 164 A.3d 494, 497 (Pa. Super. 2017) (citation omitted). 

We must determine, 

whether viewing all the evidence admitted at trial in the light most 

favorable to the verdict winner, there is sufficient evidence to 

enable the fact-finder to find every element of the crime beyond 

a reasonable doubt. In applying [the above] test, we may not 

weigh the evidence and substitute our judgment for the factfinder. . . . Finally, the [trier] of fact while passing upon the 

credibility of witnesses and the weight of the evidence produced, 

is free to believe all, part or none of the evidence.

Commonwealth v. Fortson, 165 A.3d 10, 14–15 (Pa. Super. 2017) (citation 

and internal brackets in original). Additionally, “[t]he evidence need not 

preclude every possibility of innocence and the fact-finder is free to believe 

all, part, or none of the evidence presented.” Hutchison, 164 A.3d at 497.

Appellant argues that the Commonwealth should have charged her with 

“under-ringing” the merchandise. Appellant’s Brief, at 17. Appellant argues 

“the only items which had allegedly altered price tags were the candles . . . 
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[and] there was no evidence presented that Appellant had switched the tags, 

that she was aware that the incorrect price tag was on the candles, or that 

she intentionally purchased the candles knowing that the price tags had 

purportedly been switched.” Id., at 17-18. Appellant challenges the 

sufficiency of the evidence presented that she “committed the actus reus

required for retail theft under [Section] (a)(2).” Id., at 17. 

A person is guilty of a retail theft if [s]he:

alters, transfers or removes any label, price tag marking, 

indicia of value or any other markings which aid in 

determining value affixed to any merchandise displayed, 

held, stored or offered for sale in a store or other retail 

mercantile establishment and attempts to purchase such 

merchandise personally or in consort with another at less 

than the full retail value with the intention of depriving the 

merchant of the full retail value of such merchandise[.]

18 Pa.C.S. § 3929(a)(2). 

At trial, Ms. Steele, an asset protection employee of Walmart, testified 

that she observed Appellant in Walmart on February 20, 2019. N.T. 9/19/19, 

at 17-18. Ms. Steele observed Appellant go to “register 48” of the “self-checkout registers.” Id., at 18. Ms. Steele testified, “I could see [Appellant] 

scanning the items . . . and left the store.” Id., at 18-19. Ms. Steele stated 

she “went to her office and brought up . . . the receipt and was verifying[,]

using the video[,] what was scanned and wasn’t scanned.” Id., at 19. Ms. 

Steele identified copies of the receipts she obtained from February 20, 2019. 

Id. The Commonwealth played a video of Appellant scanning items at the 
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self-check-out on February 20, 2019. Id., at 21. Ms. Steele narrated the 

video as follows: 

Okay, [Appellant] scans the first item, which was shirt, it scans at 

a dollar, puts that in the bag. Put’s a bunch over to the side, the 

second thing is supposed to be a pair of jeans for a dollar, 

obviously that’s a grey sweatshirt, men’s sweatshirt. Next item 

on the receipt is another pair of jeans, jeans for one dollar. This 

is a, obviously a long sleeve black shirt. By watching the video, 

I can see where she has the - - the tag in her hand, she 

keeps her fingers tucked under her right hand. That’s a pair 

of socks, er, a package of socks that are on clearance for a dollar, 

and that was the next thing on the list that she scanned. Next 

item comes up a touch glove, which is a mitten that you can use 

your phones and so forth with, those were on clearance for a 

dollar. Here she puts an actual pair of gloves in place of that. She 

tries to scan the pair of underwear there and you can see the tag 

popped out of there. . . . [T]here was a tag in her hand and 

she was trying to swipe the briefs and skid them across the 

register right there separate from – that was the tag for 

the touch glove.

Id., at 22-23 (emphasis added). 

Ms. Steele continued, “[t]hese next two items she scans are large 

candles valued around $25.00, she has a pad on the bottom of it for $0.94 

three-ounce candles that she puts in, that she scans but she puts the $25.00 

candles into the bag.” Id., at 25. Ms. Steele testified, “[t]he third transaction 

she has two packages, these are contractor garbage bags valued at $4.96 . . 

. [s]he scans another one of the touch glove tags for a dollar each.” Ms. Steele 

points out, “[a]t one point here is where she flips the package over, you can 

see the label in her – in her right hand holding against the package . . . [t]he 
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ticket in her right hand, right there[.] . . . This one they end up paying $2.00 

for cash[.]” Id., at 25-26. 

The evidence presented at trial is sufficient to sustain Appellant’s 

conviction for retail theft occurring on February 20, 2019. The evidence 

demonstrated that Appellant transferred the price tags of lower priced items 

to the higher priced items when she held the lower priced tag in her hand and 

scanned that tag while passing the higher priced item through the scan 

machine into her bag. The transfer of the price tags was complete, however 

momentarily, when Appellant covertly scanned the lower priced tag held in 

her hand in place of the tag of the higher priced item. Additionally, the 

evidence demonstrated that Appellant altered the price tags because the items 

she scanned that appeared on her receipt did not match the items she placed 

in her bag. Lastly, the Commonwealth presented evidence that Appellant 

scanned “large candles valued around $25.00” but had “a pad on the bottom 

of it for $0.94 three-ounce candles that she . . . scans but she puts the $25.00 

candles into the bag.” Id., at 24. We find that there is sufficient evidence for 

the jury to find Appellant “alter[ed], transfer[ed] or remove[d] any label, price 

tag, marking indicating value or other marking that aids in determining the 

value affixed to the merchandise.” 18 Pa.C.S. § 3929(a)(2). 

For the February 21, 2019 count of retail theft, Ms. Steele testified that 

on that date, she observed Appellant on the live-feed camera. Id., at 27. Ms. 

Steele testified that Appellant was at the self-check-out register number 43 

and “skip scanned,” meaning “she didn’t just scan something and she put it 
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in the bag.” Id., at 27. Ms. Steele identified the receipt from February 21, 

2019 and it was admitted into evidence. Id., at 27-28. The Commonwealth 

played video from the self-check-out register from February 21, 2019. Id., 

at 28. Ms. Steele testified that Appellant “comes up to the register, she has 

two drinks . . . [s]cans the – both of those, a Dove type of body spray thing 

and right there was the razors, she just skip scanned those . . . the flashlight 

and the candles, the large candles, again rang up as a three-ounce 

candle.” Id., at 29-30 (emphasis added). The receipt for February 21, 2019,

shows that Appellant rang up a three-ounce candle for $0.94 cents. See, 

Commonwealth Exhibit, 5. 

In addition to the testimony of Ms. Steele, after viewing the 

Commonwealth’s Exhibit, 6, the video surveillance of the check-out, we find 

the jury had sufficient evidence to find Appellant guilty of retail theft. Ms. 

Steele testified that Appellant scanned a “large candle” but that the receipt 

reflected “a three-ounce candle.” N.T. 9/19/19, at 29-30. The video 

demonstrated that Appellant scanned a large item, as large as her hand, 

where a 3-ounce candle is reflected on the receipt. Appellant also used her 

entire body to scan that item, when she uses only her hands and arms to scan 

the other items in her shopping cart. “Viewing all the evidence admitted at 

trial in the light most favorable to the Commonwealth as verdict winner,” see 

Fortson, 165 A.3d at 14, the evidence is sufficient to establish retail theft for 

February 21, 2019. 
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Appellant next argues that she was improperly convicted of both retail 

theft and theft-RSP for the same conduct. In her brief, Appellant raises a 

statutory argument and a legality of the sentence argument. We will address 

her legality of the sentence argument first, as it is dispositive. Appellant 

argues that the trial court erred in sentencing her on both retail theft and 

theft-RSP because they merge for sentencing purposes. Appellant’s Brief, at 

9-12. 

A claim that crimes should have merged for sentencing 

purposes raises a challenge to the legality of the sentence. 

Therefore, our standard of review is de novo and our scope 

of review is plenary. A challenge to the legality of the 

sentence may be raised as a matter of right, is nonwaivable, and may be entertained so long as the reviewing 

court has jurisdiction.

Commonwealth v. Leaner, 202 A.3d 749, 784 (Pa. Super. 2019) (internal 

citation and quotation marks omitted). 

Section 9765 of the Judicial Code provides that:

No crimes shall merge for sentencing purposes unless the crimes 

arise from a single criminal act and all of the statutory elements 

of one offense are included in the statutory elements of the other 

offense. Where crimes merge for sentencing purposes, the court 

may sentence the defendant only on the higher graded offense.

42 Pa.C.S. § 9765. 

A plain language interpretation of § 9765 reveals the General 

Assembly's intent to preclude the courts of this Commonwealth 

from merging sentences for two offenses that are based on a 

single criminal act unless all of the statutory elements of one of 

the offenses are included in the statutory elements of the other.
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Commonwealth v. Calhoun, 52 A.3d 281, 284 (Pa. Super. 2012) (internal 

citation omitted). 

In the Criminal Information, Appellant was charged with retail theft and 

theft-RSP for conduct occurring on February 20, 2019 and again charged with 

retail theft and theft-RSP for conduct occurring on February 21, 2019. 

Criminal Information, counts 1-4. The Commonwealth and trial court do not 

contend that retail theft or theft-RSP convictions for each date were based on 

different acts, therefore, the crimes of retail theft and theft-RSP did “arise 

from a single criminal act” on each occasion, the act of Appellant covertly 

scanning a lower priced merchandise tag in her hand while passing higher 

priced merchandise into her bag. 42 Pa.C.S. § 9765. The other element 

required for merger, that “all of the statutory elements of one offense are 

included in the statutory elements of the other offense,” 42 Pa.C.S. § 9765, 

is also satisfied here because all the elements of theft-RSP are included in 

retail theft. 

A person is guilty of a retail theft if [s]he:

alters, transfers or removes any label, price tag, marking, indicia 

of value or any other markings which aid in determining value 

affixed to any merchandise displayed, held, stored or offered for 

sale in a store or other retail mercantile establishment and 

attempts to purchase such merchandise personally or in consort 

with another at less than the full retail value with the intention of 

depriving the merchant of the full retail value of such 

merchandise[.]

18 Pa.C.S. § 3929(a)(2). For theft-RSP, the Crimes Code provides: 
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[a]person is guilty of theft if [s]he intentionally receives, retains, 

or disposes of movable property of another knowing that it has 

been stolen, or believing that it has probably been stolen, unless 

the property is received, retained, or disposed with intent to 

restore it to the owner.

18 Pa.C.S. § 3925(a).

Retail theft includes the elements: (1) alters, transfers, or removes any 

label, price tag, marking, indicia of value or any other markings which aid in 

determining value affixed to any merchandise displayed, held, stored or 

offered for sale in a store or other retail mercantile establishment and (2) 

attempts to purchase such merchandise personally or in consort with another 

at less than the full retail value with the intention of depriving the merchant 

of the full retail value of such merchandise. See Commonwealth v. Black, 

380 A.2d 911, 913 (Pa. Super. 1977) (holding that criminal intent to deprive 

the merchant of the full retail value of such merchandise was an element of 

18 Pa.C.S. § 3929(a)(2)).

3

The elements of receiving stolen property may be stated as: (1) 

intentionally acquiring possession, control or title, retaining, disposing, or 

lending on the security of movable property of another; (2) with knowledge 

or belief that it was probably stolen; and (3) intent to deprive permanently. 

See Commonwealth v. Young, 35 A.3d 54, 63 (Pa. Super. 2011).

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3 18 Pa.C.S. § 3929(a)(2) was amended to include the second element. See

18 Pa.C.S. § 3929(a)(2) (Amended 1976, Dec. 2, P.L. 1230, No. 272, § 1, 

imd. effective). 
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This Court recently reiterated a long standing proposition “that 

convictions for theft by unlawful taking and receiving stolen property merge 

for sentencing purposes.” See Commonwealth v. Crawford, 254 A.3d 769, 

781-82 (Pa. Super. 2021), appeal denied, Commonwealth v. Crawford, 

2021 WL 5353258 (Pa., filed Nov. 21, 2021) (table). Although decided before 

the Pennsylvania legislature adopted 42 Pa.C.S. § 9765, this Court has 

previously held that theft by unlawful taking and retail theft merged for 

sentencing where “both convictions arose out of the single act of theft of the 

diamond ring.” Commonwealth v. Boerner, 422 A.2d 583, 517 (Pa. Super. 

1980). This Court determined, 

[o]nce proof of the theft by unlawful taking was complete, so was 

proof of the retail theft, and vice-versa. It is therefore 

unquestionable that the two crimes merged for sentencing 

purposes, and appellant could be sentenced for only one. 

Id. 

This Court’s discussion of the elements of theft by unlawful taking and 

theft-RSP, albeit in the context of double jeopardy, is instructive. 

We begin our analysis by comparing the first element of both 

statutes. Although theft by receiving stolen property does not 

expressly prohibit “unlawful taking or unlawful control over 

movable property,” . . . the statute's requirement that a person 

intentionally acquire possession, control or title, retain, dispose or 

lend on the security of moveable property of another knowing or 

believing that it is stolen necessitates either theft of the 

property or unlawful control over the movable property of 

another. Similarly, the second element of theft by unlawful 

taking, that the movable property belong to another, is necessary 

to establish the second element of theft by receiving stolen 

property because a person cannot have knowledge or belief that 
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property was stolen unless it belonged to another. Finally, both 

statutes require the intent to deprive permanently. 

Young, 35 A.3d at 63 (emphasis added) (citations omitted). This Court 

ultimately concluded that “when a defendant is found not guilty of receiving 

stolen property or not guilty of theft by unlawful taking, a second trial on the 

other charge would violate his protection against double jeopardy.” Id. 

Retail theft and theft-RSP both require intent to deprive the owner (of 

the full value of the merchandise and possession of the item, respectively). 

For retail theft, a person must have the intent to “deprive the merchant of the 

full value of the merchandise” and “without intent to restore possession” for 

theft-RSP. Subsumed in the “attempt to purchase the item with intent to 

deprive the merchant of the full value of the merchandise” is “without the 

intent to restore.” See Crawford, 254 A.3d at 781-82 (finding the intent is 

identical in theft by unlawful taking and theft-RSP); Young, 35 A.3d at 63 

(theft by unlawful taking and theft-RSP both require the intent to deprive 

permanently). 

Theft-RSP requires that a person intentionally receives, retains, or 

disposes of movable property of another with knowledge or belief that it was 

probably stolen. 18 Pa.C.S. § 3925. “As used in this section the word 

“receiving” means acquiring possession [or] control . . . of the property.” 18 

Pa.C.S. § 3925(b) (emphasis in original). Retail theft requires that a person 

alters, transfers, or removes any label, price tag and attempt to purchase the 

merchandise at less than retail value. 18 Pa.C.S. § 3929(a)(2). See Black, 
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380 A.2d at 913 (removal of a store price tag, in itself, is not unlawful without 

the criminal intent to deprive the owner of the full value of the merchandise); 

c.f. Commonwealth v. Rodriquez, 989 A.2d 29, 32 (Pa. Super. 2010) (retail 

theft judgment of sentence vacated for insufficient evidence where appellant 

did not have possession of the item with the requisite intent when Appellant 

removed stereo from Walmart shelf and took it directly to returns counter to 

obtain money).4 In Rodriguez, this Court found the appellant’s criminal 

conduct began when he placed the item into the possession of the store clerk 

to request a refund and, therefore, Appellant did not have possession of the 

item with the requisite intent for retail theft. Id. 

Once a person attempts to purchase the altered merchandise at less 

than retail value, with the requisite intent, they have completed the crime of 

retail theft, likewise, they have acquired “possession” of the property of 

another and clearly have knowledge it has been stolen. See Rodriquez, 989 

A.2d at 32; Black, 380 A.2d at 913. “Receipt” of the item, acquiring 

possession or control of the property is included in the elements of retail theft. 

See Rodriquez, 989 A.2d at 32; Black, 380 A.2d at 913. We conclude that 

retail theft includes all the elements of theft-RSP that the person “receive” 

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4

In Rodriquez, 989 A.2d at 29, appellant was convicted of retail theft, theft 

by deception and theft-RSP. This Court noted, “[t]he trial court did not 

sentence Appellant on the theft by deception or receiving stolen property 

convictions because the trial court determined that those convictions merged 

with the conviction for retail theft.” Id. However, merger was not at issue 

before this Court. 
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property of another, “knowing it has probably been stolen,” and has the 

requisite intent to permanently deprive the owner. Because the crimes of 

retail theft and theft-RSP arose from the same criminal act and the crime of 

retail theft contains all the elements of theft-RSP, the crimes merge for 

sentencing. 42 Pa.C.S. § 9765.

Because we find that retail theft includes all the elements of theft-RSP, 

Appellant’s sentences for theft-RSP must be vacated. The trial court 

sentenced Appellant to consecutive sentences for the retail theft and theftRSP convictions for both occurrences, thus, our disposition has disturbed the 

trial court’s overall sentencing scheme. Therefore, we vacate Appellant’s 

judgment of sentence in its entirety and remand for resentencing. See 

Commonwealth v. Tanner, 61 A.3d 1043, 1048 (Pa. Super. 2013); “[I]f a 

correction by this Court may upset the sentencing scheme envisioned by the 

trial court, the better practice is to remand [for resentencing]”) 

Commonwealth v. Williams, 997 A.2d 1205, 1210-1200 (Pa. Super. 2010) 

(internal quotations, citations, and corrections omitted).5 

Judgment of sentence vacated. Remanded for resentencing. 

Jurisdiction relinquished.

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5 Based on this disposition, we will not discuss Appellant’s issue regarding the 

discretionary aspects of her sentence, that the trial court erred in imposing 

consecutive sentences and in imposing court costs without determining if she 

had the ability to pay. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/04/2022